Source: The Indian Express  

Introduction  

The Supreme Court has directed States to consider premature release of eligible prisoners even without formal applications. This landmark decision was delivered on 18th February, 2025, by Justices Abhay S. Oka and Ujjal Bhuyan in a suo motu case titled "In Re: Policy Strategy for Grant of Bail." The case was instituted in 2021 to states overcrowding in prisons. 

What was the Background of the Policy Strategy for Grant of Bail Case? 

• The Supreme Court initiated this case in 2021 to issues related to prison overcrowding in India.  
• This decision marks a significant shift from the Court's 2013 rulings in Sangeet v. State of Haryana (2012) and Mohinder Singh v. State of Punjab (2013) which had established that remission could not be granted suo motu and required prisoner applications. 
• The Court noted that prison manuals in several States already require superintendents to initiate remission proceedings.  
• The Court observed that applying the previous stance to States with established remission policies would be discriminatory and arbitrary, violating Article 14 of the Constitution.  
• According to NCRB data, Indian prisons had 131.4% occupancy as of December 2022, with 5,73,220 inmates against a capacity of 4,36,266. 

What were the Court's Observations? 

• The Court observed that when a State has a policy for remission with eligibility conditions, it becomes obligatory for the government to consider all eligible convicts for remission.  
• Failing to do so would be discriminatory and arbitrary, violating Article 14 of the Constitution.  
• The Court noted that the earlier judgments did not consider scenarios where governments had formal remission policies with clear eligibility criteria. 
• The Court states that the power under Section 432 of Code of Criminal Procedure, 1973 (CrPC) must be exercised in a fair and reasonable manner.  
• It held that where no policy exists, authorities might not exercise remission powers fairly, necessitating comprehensive policies.  
• The Court also stated that recording reasons for granting or rejecting remission is necessary as it affects the convict's liberty under Article 21 of Indian Constitution. 

What is the Law on Remission? 

• Remission refers to the power to reduce the sentence period for convicted persons. Section 473 of the Bharatiya Nyaya Suraksha Sanhita (BNSS) and Section 432 of the CrPC grant state governments the power to remit sentences "at any time."  
• The States can impose conditions for remission, such as requiring regular reporting to police officers. 
• If these conditions are not met, states may cancel the remission and rearrest the convict without a warrant. 
• Section 475 of BNSS (equivalent to Section 433A of CrPC) restricts states from releasing convicts serving life sentences for capital offences until they have served at least 14 years.  
• The remission power is separate from the clemency powers of the President and Governors under Articles 72 and 161 of the Constitution.  
• Both the BNSS and CrPC mention that the remission process starts with an application, but the Court has now ruled this is not strictly necessary when states have formal remission policies. 

What are the Provisions Related to Remission? 

• The provisions related to remission in the CrPC are Section 432, Section 433, and Section 433A. 
• These are now contained in Section 473, Section 474, and Section 475 of the BNSS.  
• Section 473 of BNSS contains several salient provisions: 
  • the appropriate Government may suspend or remit sentences with or without conditions;  
  • the Government may request the trial judge's opinion when considering remission;  
  • the Government can impose conditions on the remitted sentence; and  
  • the Government can cancel remission and rearrest the person without a warrant if conditions are breached. Section 474 BNSS allows the appropriate Government to commute sentences to a lesser punishment.  
• Section 475 of BNSS restricts the power to release certain life convicts before they serve at least 14 years of imprisonment, particularly for those convicted of offences punishable by death. 

What are the Conditions for Remission? 

• The Court held that conditions imposed while granting remission must be reasonable and capable of being complied with.  
• Conditions cannot be vague or oppressive, as they would prevent convicts from effectively using the remission order.  
• When granting remission, authorities must consider factors including the nature and motive of the crime, the convict's criminal background, and public safety concerns. 
• Conditions should aim to ensure that criminal tendencies remain in check and that the convict can be rehabilitated in society. 
• The Court clarified in the Mafabhai case that minor or trifling breaches of conditions should not automatically lead to cancellation of remission.  
• The Court directed that conditions must not be so stringent that the convict cannot take advantage of the remission order. 

What Directions were Issued by the Court? 

• The appropriate Government must automatically consider all eligible convicts for premature release under Section 432 of CrPC or Section 473 of BNSS when they meet policy guidelines - no specific application from the convict or relatives is required.  
• This obligation applies whenever jail manuals or departmental instructions contain such policy guidelines.  
• We direct those States and Union Territories that do not have a policy dealing with the grant of remission in terms of Section 432 of the CrPC or Section 473 of the BNSS to formulate a policy within two months from today.   
• The Appropriate Government can impose conditions when granting permanent remission, but these conditions must:  
  • Be based on relevant factors mentioned in paragraph 13. 
  • Aim to check criminal tendencies and support rehabilitation. 
  • Not be overly oppressive or stringent that would prevent the convict from benefiting. 
  • Be clear and practically performable, not vague. 
• Any order granting or refusing permanent remission must include brief reasons and be promptly communicated to the convict through prison authorities. Copies must be sent to District Legal Services Authority Secretaries.  
• Prison authorities must inform convicts of their right to challenge remission rejection orders.  
• As held in the case of Mafabhai Motibhai Sagar v. State of Gujarat (2024), an order granting permanent remission cannot be withdrawn or cancelled without giving an opportunity of being heard to the convict. An order of cancellation of permanent remission must contain brief reasons;  
• The District Legal Services Authorities shall endeavour to implement NALSA SOP in its true letter and spirit.  
• District Legal Services Authorities must monitor implementation of conclusion (a), maintain records of convicts' relevant dates, and take necessary action when convicts become eligible for premature release consideration. State Legal Services Authorities should develop a real-time data portal for tracking this information. 

Conclusion 

This landmark judgment significantly shifts how remission will be implemented across India. By eliminating the requirement for prisoner applications in states with remission policies, the Court has made the process more equitable and accessible. The judgment also establishes clear guidelines for conditions, cancellation procedures, and the recording of reasons, ensuring greater transparency and fairness in the remission system.